The phrase “you are the most idiotic politician I know” is protected by the freedom of expression and constitutes political criticism.
Antunes Emídio v. Portugal Soares Gomes da Cruz v. Portugal (no. 75637/13 and 8114/14)
Criticism of public figures with phrases such as “he is the most idiotic politician I know”, “only chickens were left”, “distinguished for his lack of character and honesty and his cowardice””. Conviction and imposition of a fine for defamation of politicians and journalists. According to the ECtHR, freedom of the press covers up to a certain degree of the exaggeration and the use of provocative expressions. The Court found that the statements condemned by the applicants were expressed in public interest discussions and that their punishment constituted a disproportionate restriction on their freedom of expression. Violation of freedom of expression (Article 10 ECHR).
The applicants are Joaquim António Antunes Emídio and Luís Manuel Soares Gomes da Cruz. They
are Portuguese nationals born respectively in 1955 and 1944 and living in Santarém and Lisbon.
In March 2011 Mr Antunes Emídio, a journalist at the time, wrote an opinion piece in the regional
weekly O Mirante, headlined, “Only chickens were left”, which criticised the Portuguese political
class. In particular, it said of R.B., the State Secretary for Agriculture, Forests and Regional
Development, that he was the most “idiotic politician I know”.
After a criminal complaint by R.B., Mr Antunes Emídio was convicted in July 2012 of aggravated
defamation. The court found his statements had amounted to value judgments which had no
connection to R.B.’s conduct as a State Secretary and had gone beyond what could be considered as
objective criticism. He was ordered to pay 2,500 euros (EUR) compensation and fined the same
amount. His appeals were rejected.
Mr Soares Gomes da Cruz, a doctor and managing partner of a clinic providing occupational health
services in the town of Lourinhã, published an open letter in a local newspaper in September 2009
after his clinic was not invited to take part in negotiations with the town council to set up a councilrun occupation health service.
The article was critical of the town’s mayor, referring among other things to his alleged “lack of
character and honesty and his cowardice”. The applicant also distributed a similarly critical leaflet.
After a complaint by the mayor and the town council, Mr Soares Gomes da Cruz was convicted of
two offences of libel through the media and one offence of insulting a legal entity. He was fined and
ordered to pay compensation to the mayor. On appeal, the fine and compensation were reduced
and set at EUR 18,000 and EUR 4,500 respectively
THE DECISION OF THE COURT
Mr Antunes Emídio
The Court agreed with the domestic court findings in this case that the applicant’s statements in the
newspaper had amounted to value judgments whose truthfulness was not susceptible of proof. The
statements had also been made in the context of a political situation and had been of general and
public interest. As such, they should have been accorded a high level of protection by the courts.
The Court concluded that the use of the word “idiotic” had not been a personal attack on R.B. but
rather had to be read in the context of the political situation. Indeed, journalistic freedom covered
the use of a certain amount of exaggeration or provocative remarks. The applicant had also been
punished with a fine and substantial damages.
The Court held that the conviction was not reasonably proportionate to the legitimate aim pursued,
having regard to the interest of a democratic society in ensuring and maintaining freedom of the
press. Finding strong reasons to substitute its view for that of the domestic courts, the Court found
that there had been a violation of Article 10.
Mr Soares Gomes da Cruz
The Court held that the applicant’s conviction for insulting a legal entity had not been prescribed by
law, as required by the Convention, as the domestic provision related only to “untrue facts” and not
to value judgments. That conclusion alone was enough to find a violation of Article 10 over that
conviction, however, the Court went on to examine whether all three convictions had met
Convention criteria related to freedom of expression.
The applicant’s letter and leaflet had been written in the context of the mayor’s political activities
and those of the town council relating to the provision of occupational health services. The matter
has thus been of legitimate general interest as it had contributed to a public debate.
The Court did not agree with the domestic courts’ findings that the mayor’s personal interest in
having his reputation protected had outweighed the applicant’s right to freedom of expression. The
applicant had made value-laden statements rather than statements of fact concerning the mayor’s
professional activities and the work of the town council.
There had also been a sufficient factual basis for the applicant’s statements: the mayor had
explained that the town council had not chosen the applicant’s company for negotiations on
occupational health services because the company was not officially accredited. However, two of the
companies which had been invited had lacked such accreditation. The Court also took note of the
high amounts which the applicant had been ordered to pay in fines and compensation.
The Court concluded that the national courts had exceeded their discretion (“margin of
appreciation”) on limiting debates on matters of public interest and that they had not carried out
the necessary balancing exercise in full conformity with Convention criteria. The Court found strong reasons to substitute its view for that of the courts and held that there had been a violation of Article 10.
Just satisfaction (Article 41)
The Court held that Portugal was to pay Mr Antunes Emídio 5,285.21 euros (EUR) in respect of
pecuniary damage and EUR 918 in respect of costs and expenses. It also held that Portugal was to
pay Mr Soares Gomes da Cruz EUR 22,500 in respect of pecuniary damage and EUR 459 in respect of
costs and expenses. It held that the finding of a violation alone was sufficient just satisfaction for
Mr Soares Gomes da Cruz in respect of non-pecuniary damage.